In Missouri, a discharged 53-year-old employee presented enough evidence of age-based discriminatory animus to get her Age Discrimination in Employment Act (ADEA)and state law claims to a jury, ruled the Eighth Circuit Court of Appeals, reversing a district court’s grant of summary judgment to her employer for lack of sufficient direct evidence of bias under the pre-Gross v FBL Fin Servs, Inc standard. In Gross (92 EPD ¶43,584), a divided Supreme Court ruled that an ADEA plaintiff alleging disparate treatment must establish by preponderance of evidence that age was the “but-for cause” of the adverse employment action challenged. Here, under any test, the employee raised a genuine issue for trial on the ultimate question of age bias vel non, the appeals court concluded. (Baker v Silver Oak Senior Living Mgmt Co, LC, 8thCir, September 14, 2009).

Most significant among the evidence offered by the employee were statements showing preference for younger over older workers that were made by her supervisor and the CEO, including: that the management team was “missing the boat by not hiring more younger, vibrant people”; that they “should start looking over applications better and try to consider hiring younger people”; and instructions that the employee fire certain workers in their 50s and 60s so that “younger workers”; could be hired who would be “better workers, have more energy, be more enthusiastic and stimulate the residents.” The clearly reflected age-based discrimination in these statements infected other remarks that might otherwise be subject to interpretation, noted the circuit court. Moreover, there was ample evidence of pretext given that the employee was placed on probation for reasons the evidence suggested were false and known to be false, and she was asked twice during her probation if she intended to resign, suggesting a quest to end her employment. Add to that the shifting and expanding explanations for her discharge, and a jury could find that management “harbored a discriminatory attitude toward older employees and desired to displace them in favor of a younger workforce,” wrote the appeals court.